Cover Story

Fair play

Will lawmakers give Supreme Court nominee Samuel Alito the same treatment plaintiffs say they had from his bench? "I felt I had had my day in court

Issue: "Samuel Alito," Nov. 12, 2005

The confirmation of a Supreme Court justice is for many people a distant exercise in democracy, a flash-popping political minuet staged at Beltway podiums and power lunches, in paneled offices and hearing rooms-philosophically but not personally important.

Not for David Warren Saxe.

To the Pennsylvania State University education professor, the high-court confirmation of 3rd Circuit appeals court Judge Samuel Alito is very personal. That's because Mr. Saxe is the Saxe-as in Saxe v. State College, one among thousands of Alito cases now being sifted for partisan gunpowder.

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In 1999, the State College (Pennsylvania) Area School District (SCASD) adopted an "anti-harassment" policy that made punishable any "unwelcome" comments, behaviors, or writings about a sweeping array of personal traits, including race, religion, values, sexual orientation, even clothing and "hobbies." In short, saying, doing, or writing about anything that might offend just about anyone was subject to penalty. Mr. Saxe, whose children attended school in the district, is a Catholic whose religion teaches against the mainstreaming of homosexuality and other unbiblical behaviors. He felt the district's policy axed the First Amendment right to free religious and political speech.

Mr. Saxe petitioned the school board to amend or eliminate the policy, and wrote letters to local editors to make his case. The school board, he said, "ignored me, as if I was a nuisance."

Finally, he sued. And lost. A U.S. District Court ruled that the SCASD policy mirrored federal law. Meanwhile, school officials and his Penn State colleagues excoriated him in the press, accusing him of wasting taxpayer dollars on a frivolous ideological crusade. Mr. Saxe said the experience left him feeling marginalized, and reminded him of others who had fought for civil rights "from outside the mainstream of society. Suddenly I found myself in that position."

In May 2000, Mr. Saxe appealed to the 3rd Circuit Court of Appeals, where Mr. Alito had sat on the bench since 1990. Eight months later, the court unanimously ruled the SCASD policy unconstitutional. In prohibiting values-based speech, Mr. Alito wrote, the policy "strikes at the heart of moral and political discourse-the lifeblood of constitutional self-government . . . and the core concern of the First Amendment."

"When I left Mr. Alito's courtroom, I didn't know whether I'd won or lost, but I felt I had had my day in court," Mr. Saxe told WORLD. Mr. Alito's nomination "is a marvelous choice for the average guy because he'll hear what you're saying and make a decision according to the law. That's the kind of person we should all want."

The question is, will that be the kind of judge members of the U.S. Senate want? While those who know Mr. Alito and his record proclaim him a fair and meticulous jurist, Senate liberals began launching anti-Alito salvos within minutes of his Oct. 31 nomination.

"It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us," said Senate Judiciary Committee member Charles Schumer (D-N.Y.).

Senate Minority Leader Harry Reid (D-Nev.) said Americans would soon learn whether Mr. Alito was "too radical" to replace Justice O'Connor.

The whole idea that Mr. Bush should replace Justice O'Connor with a Justice O'Connor clone is ridiculous on its face, said Chapman University law professor John Eastman. "The whole point of the past two elections was to affect the outcome of the judiciary. It's not like this was a little 'hidden' platform. Democrats lost in 2002 and 2004 on this issue. Of course this nomination is supposed to move the court to the right."

If conservative support is any indication, an Alito confirmation seems certain to do so. Unlike the fractious debate that split the right over Harriet Miers, the Bush base seems united behind the new nominee. Southern Baptist Convention president Richard Land, who supported Ms. Miers, said he is "pleased" with the new nominee and predicted Mr. Alito will survive the confirmation battle.

"We're going to win it," Mr. Land said. "I think the president, in nominating Harriet Miers, was trying to spare the country . . . a bitter, corrosive, and negative debate in the current atmosphere. . . . Since conservatives wouldn't accept that, they've got their fight."

Mat Staver, for one, is ready to rumble. The president of Liberty Counsel, a Christian public-interest law firm in Orlando, he was the first to call for Mr. Bush to withdraw Ms. Miers's nomination, based on her lack of a proven record in constitutional law.

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